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High Court Of Madhya Pradesh
R. J. Bhave, S. M. N. Raina and J. S. Verma, JJ.
GIRJA SHANKAR SHUKLA - Appellant
Versus
SUB-DIVISIONAL OFFICER, HARDA - Respondents
Misc. Petn. 418 Of 1971
Decided On : 01/22/1973
Per Verma, J. - In order to incur the disqualification specified in clause (c) of section 35 of the Act it is necessary that the person holds any office of profit under the Council. It is clear that there must be first an office under the Council and then profit attached to it.
There is no provision in the Act which even contemplates the so-called office of standing Council. A statutory body like the council cannot create an office for which the statute does not provide.
A lawyer engaged by the Municipal Council does not hold an office of profit under the Council and does not suffer from the disqualification provided in clause (c) of section 35 of the Act. [Paras 6 & 7
Per Raina, J. - It is clear that it is one of the duties of the Council to institute and defend both civil and criminal proceedings in the discharge of its function under the Act. For the proper and efficient discharge of this duty, it is necessary for the Council to appoint a standing counsel under section 94 of the Act. It cannot, therefore, be said that the statute does not contemplate or provide for such an office or that there is no foundation for such an office under the Act. [Para 32
Per Bhave, J. - Before any person is said to have held any office, it must be shown that the office was, in fact, created anterior to the appointment of the person to the office or at least simultaneously. AIR 1970 SC 694 relied on. [Para 44
A person merely discharging special functions assigned to him by Council cannot be said to hold any office because that can be done even under a contract without holding any particular office. [Para 45
A practicing Advocate who by the terms of his employment agrees to appear in all cases of the Municipal Council while continuing as an Advocate and when nothing else is known about his terms of employment to indicate that he is under the disciplinary control of the Council cannot be said to hold an office of profit under the Council by the mere fact of his being a standing council of the Municipal Council. [Para 46
(2) Municipalities Act, 1960 (MP) - S. 55 (3) - Sub-Divisional Officer holding charge of current duties of the Collector - may preside over the meeting.
Per Bhave & Verma, JJ. - The provisions of sections 16, 17, 22 & 26 of the M.P. Land Revenue Code, 1959, and section 2 (6) of the M.P. General Clauses Act, 1957, clearly show that functions of presiding over a meeting in accordance with the provisions of sub-section (3) of section 55 of the M.P. Municipalities Act is not that of a persona designata, but of an officer who is empowered to perform the duties of the Collector of the district. [Para 24
A Sub-Divisional Officer holding the charge of current duties of a Collector on leave, could validly preside over the meeting under section 55 (3) of the Municipalities Act, and was the Collector of the district within the meaning of that expression used in sub-section (3) of section 55 of the M.P. Municipalities Act, 1961. [Paras 29 & 47
Per Raina, J. - An officer appointed to hold the current charge of the duties of a higher post cannot exercise the statutory powers attached to that post unless there is a statutory provision to this effect. In the instant case such a statutory provision exists in section 2 (6) of the M.P. General Clauses Act and section 26 of the M.P. Land Revenue Code, and, therefore, the Sub-Divisional Officer who was placed in current charge of the duties of the Collector was competent to function as Collector within the Meaning of section 55 of the M.P. Municipalities Act. [Paras 38 & 39
(3) Constitution of India - Art. 311 (1) - power to dismiss given to an Officer - person holding charge of current duties cannot exercise the power.
(4) Jurisdiction - statutory powers given to an officer - person holding current charge of duties - cannot exercise those powers if delegation prohibited by statute.
(5) Words and phrase - 'charge of current duties' - powers of the person holding the charge.
In situations like those under Article 311 (1) of the Constitution of the Defence of India Act or Rules where the delegate is named and further delegation is prohibited expressly or impliedly, a person holding charge of current duties cannot exercise the powers. In all such cases, emphasis is on rank, and the power can be exercised only by the holder of that rank. However, there are other categories of cases, like the present, where emphasis is not on rank but only on the authority to discharge a certain function. In this latter class of cases, an that has to be examined is whether the person discharging the impugned function is so empowered or not, there being no prohibition, express or implied, against delegation and there being no such emphasis on rank. The category to which a case belongs will depend on the nature of the function and the context in which the power is given. Thus, in every case the purpose and nature of the function, the provision conferring power and the context or setting in which it appears, have all to be seen in order to determine weather the power can be exercised only by the holder of a particular rank and none else. [Para 16
A person appointed permanently or to officiate on a post holds that rank, whereas a person who is placed only in current charge of duties of a post does not hold that rank. Accordingly those functions or powers of the post which depend on the rank cannot be discharged by a person who is placed only in current charge of the duties of that post. 30 MPLC 208, AIR 1969 SC 483, AIR 1965 SC 1619 relied on 1964 JLJ 24 & 1969 JLJ 888, approved 1971 JLJ 410, held obiter. [Paras 17, 38 and 40
(6) Land Revenue Code, 1959 (MP) - S. 26 - scope of - includes the contingency when the Collector is on leave.
The enacting part in section 26 of the M.P. Land Revenue Code, 1959, shows that it applies to all cases where the person holding the rank of the Collector in the district is unable to perform his duties for any reason whatsoever until the State Govt. appoints a successor in accordance with the provisions of section 16 of the Code and such successor takes charge of his appointment. There is no reason to construe the word 'disabled" in section 26 narrowly so as to cover within its ambit only such disability as may be occasioned due to an act independent of the volition of the person holding the rank of Collector [Paras 27 and 47
The disability contemplated by this section must be construed liberally as inability to perform the duties for any reason whatsoever. Therefore, if the Collector is for the time being on leave and is, therefore, unable to perform the duties of his office the officer appointed to hold current charge of the duties of the Collector in his absence shall be the Collector for the purpose of the Code. [Para 39
( 1 ) THIS whole case has been referred to this Full Bench for decision in view of the fact that on the main question for decision heroin, there appears to be a conflict between two Division Bench decisions of this Court. The correctness of the construction made of the expression 'current charge of the duties of a post' by a division Bench of this Court in Rampratap v. State of M. P. , 1964 MPLJ 86 = (AIR 1964 Madh Pra 114) was doubled by another Division Bench in State of M. P. v. Gokul Prasad, 1971 MPLJ 609 = (1971 Lab IC 896 ). Hence this reference.
( 2 ) THE petitioner, as a voter, has challenged the election of respondent No. 2 as president and of respondents Nos. 3 and 4 as Vice-Presidents of the Municipal council, Itarsi, at a meeting held for the purpose on 10-7-1971. This council was constituted after the general elections in April 1969 and the impugned elections were for these offices after expiry of the terms of their first incumbents. The notice (Annexure 'g') convening the meeting held on 10-7-1971 was issued by Shri anand Mohan, Collector of the district. However, Shri Anand Mohan having proceeded on leave Was absent on 10-7-1971 and the meeting was presided over by Shri Arun Kumar Kshetrapal, Sub-Divisional Officer, Harda, who was also placed in current charge of the duties of Collector during that period by an order of the State Government.
( 3 ) THE respondent No. 2 is a lawyer and was engaged by the Municipal Council to appear on its behalf as a counsel in some class of cases. However, prior to his contesting the election he had intimated the council on 8-7-1971 that he would thereafter not appear as a counsel for the Municipal Council.
( 4 ) SHRI K. P. Munshi, learned counsel for the petitioner has made two submissions. Firstly, he contends that the meeting of 10-7-1971 should have been presided over by the Collector and since it was actually presided over by the Sub-Divisional officer, there were no valid elections held to these offices. Secondly, he urges that the respondent No. 2, being a standing counsel of the Municipal Council, held an office of profit under the council and as such was disqualified by virtue of Clause (c) of Section 35 of the Madhya Pradesh Municipalities Act, 1961 (hereafter called the Act ).
( 5 ) I shall first deal with the second ground before I take up the first one which is actually the main ground urged by the petitioner.
( 6 ) IN order to incur the disqualification specified in Clause (c) of Section 35 of the act it is necessary that the person 'holds any office of profit under the council. . . . . . . . . ". It is clear that there must be first an office under the council and then profit attached to it. Shri Munshi could not show us any provision in the Act which even contemplates the so-called office of standing counsel. It is difficult to visualize an office under the council for which there is no foundation in the Act. A statutory body like the council cannot create an office for which the statute does not provide. It is significant to notice that Clause (m) of Section 35 of the Act provides disqualification in case of a Government Pleader. If the legislature intended to disqualify a lawyer engaged by the council, there is no reason why a specific provision to that effect would not be made as in the case of Government pleader.
( 7 ) THE respondent No. 2 had terminated his engagement as a lawyer for the municipal Council on 8-7-1971. As such, whatever relationship was created earlier between him and the council ended on 8-7-1971, prior to his candidature in the election. For this reason alone there could be no disqualification incurred by respondent No. 2 on 10-7-1971 when he became a candidate for the office of president of the council. Even otherwise, I am of the view that a lawyer engaged by the Municipal Council does not hold an office of profit under the Council and does not suffer from the disqualification provided in Clause (c) of Section 35 of the act.
( 8
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